6.  The applicant was born in 1964 in Belarus. In 1991 he left Belarus for Germany. He obtained refugee status in that country on the ground that he was of Jewish origin and, because of this, risked persecution in Belarus. In 2004 the applicant acquired German nationality. The applicant pursued business activities in both countries.
7.  In January 2007 the Belarus authorities instituted criminal proceedings against the applicant and several others, accusing them of organised crime, abuse of power, smuggling and bribery. According to the Belarus investigators, the applicant and his co-accused committed these crimes in 1999 and 2001 when they were engaged in business activities in that State. In particular, they allegedly bribed high-ranking officers of the Belarus Customs Service and Committee for State Security (“the KGB”) to allow them to import goods into Belarus without paying high customs duty. Subsequently, criminal proceedings were brought against a number of former and acting State officials, with the result that some of them were dismissed from office and some were convicted. The investigations were carried out jointly by the General Prosecutor’s Office and the Ministry of the Interior and were led by investigator B. attached to the General Prosecutor’s Office.
8.  On 11 October 2007 an arrest warrant was issued against the applicant. It was later revoked, as the applicant was cooperating with the investigators and was living permanently in Germany. In particular, on a number of occasions in 2008 and 2009 the applicant was questioned by investigators at the Belarus consulate in Berlin, and provided witness statements which, according to the applicant, were used in proceedings against others, including several former high-ranking KGB officers and the former Minister of the Interior. The applicant submits that during one of the meetings with the investigators he was questioned in his lawyer’s absence.
9.  On 22 February 2010 the General Prosecutor of Belarus issued an arrest warrant against the applicant on the grounds that he had committed serious crimes and was living permanently outside Belarus. In the arrest warrant it was stated that the applicant was to be placed in the KGB Detention Centre.
10.  According to the applicant, one of his lawyers contacted investigator B., asking about the reasons for the decision to arrest the applicant. In a telephone conversation between the lawyer and the investigator, the latter stated that a decision to bring the applicant to Belarus had been taken at a high political level in order to coerce him to change or retract the statements he had made during his questioning, with a view to torpedoing the proceedings against the senior officials accused of involvement in smuggling and bribery.
11.  On 3 March 2010 the KGB arrested the investigator on charges of abuse of power. According to the applicant, the investigator was dealing mainly with high-profile corruption cases involving the KGB and the police staff. Her arrest was one of the consequences of a “power struggle” between the KGB, the Ministry of the Interior and the Prosecution Service, the former having the strongest position in the political system of Belarus. Several other investigators dealing with the applicant’s case were also arrested by the KGB.
12.  The investigator is being tried in Belarus. The court hearings are being held in camera as the case concerns State secrets.
13.  In 2010 some extracts from the video recording of the applicant’s questioning in 2008-09 were broadcast by the Russian television company NTV, in a programme which concerned alleged corruption of the highest officials in Belarus, including the President.
14.  On 22 February 2010 the applicant went to Ukraine on business.
15.  On the same day the General Prosecutor of Belarus requested the General Prosecutor’s Office of Ukraine (“the GPU”) to arrest the applicant pursuant to Article 61 of the Convention on Legal Assistance and Legal Relations in Civil, Family and Criminal Cases (“the Minsk Convention”, see paragraph 89 below).
16.  On 23 February 2010 the applicant was arrested by the Ukrainian State Security Service (“the SBU”).
17.  According to the applicant, he was taken to the SBU the same day, where he was denied access to a lawyer and forced by unknown SBU officers to sign a waiver of his right to legal assistance. He was questioned by the officers for about six hours.
18.  On 24 February 2010 the SBU requested the Babushkinskyy District Court, Dnipropetrovsk (“the Babushkinskyy Court”) to remand the applicant in custody for forty days, pending submission of an extradition request by the Belarus authorities.
19.  On the same day the court, relying on Article 29 of the Constitution of Ukraine, Article 61 of the Minsk Convention, and Articles 148-150, 155, 165-1 and 165-2 of the Code of Criminal Procedure (see paragraph 93 below), ordered that the applicant remain in detention until 5 March 2010. The court held that it was necessary to obtain further information concerning the SBU’s request.
20.  The court hearing on 24 February 2010 was attended by a prosecutor, SBU officers and the applicant. During the hearing the applicant’s request for a lawyer was refused, as the court considered a lawyer’s participation unnecessary.
21.  On an unspecified date the applicant hired Ms M., a lawyer practising in Kyiv, to act as his legal representative. Subsequently, the applicant also hired Mr S., a lawyer practising in Kiev.
22.  On 5 March 2010 the Babushkinskyy Court examined a new request lodged by the SBU on 4 March 2010 for the applicant’s continued detention pending a decision on the extradition request of 24 February 2010 (see paragraph 50 below). The applicant and one of his lawyers were present at the court hearing and asked the court to refuse the SBU’s request. The lawyer also complained that the applicant’s arrest had not been in accordance with the relevant regulations and that his right to legal assistance had been violated.
23.  The court held that it was necessary to obtain information concerning the administrative proceedings instituted by one of the applicant’s lawyers against the GPU (see paragraph 69 below) and extended the applicant’s detention until 10 March 2010.
24.  The court further held that the applicant’s arrest had been lawful. It found that the arrest had been in accordance with Articles 56 §§ 1 and 2, 57 and 58 of the Minsk Convention and had been based on a request and accompanying documents submitted by the General Prosecutor’s Office of Belarus. The court also noted that the applicant had expressly waived his right to a lawyer.
25.  On 10 March 2010 the Babushkinskyy Court, having examined the SBU’s request of 4 March 2010 in the applicant’s and one of his lawyers’ presence, ordered the applicant’s detention pending his extradition. The court found that the extradition request was in compliance with Article 58 of the Minsk Convention and that there were no grounds for refusing extradition under Article 57 of the Minsk Convention.
26.  One of the applicant’s lawyers appealed, stating in particular that the request for the applicant’s extradition had not been made in accordance with the relevant regulations. The lawyer also challenged the lawfulness of the applicant’s possible extradition to Belarus.
27.  On 15 March 2010 the Dnipropetrovsk Court of Appeal upheld the decision of 10 March 2010, finding that the applicant’s detention was based on an extradition request submitted in accordance with the Minsk Convention. Having noted that the applicant was a German national and resident and was wanted by the Belarus authorities for serious crimes, the Court of Appeal concluded that if at liberty the applicant might evade investigation and trial. The court declined jurisdiction to deal with the submissions that the applicant’s extradition should be refused.
28.  The applicant states that he was not present at the hearing before the Court of Appeal.
29.  On an unspecified date one of the applicant’s lawyers lodged with the Supreme Court a request for review of the decisions of 10 and 15 March 2010 on the basis of exceptional circumstances. There is no information about its outcome.
30.  On 21 June 2010 the Dnipropetrovsk Krasnogvardiyskyy District Prosecutor lodged a request with the Krasnogvardiyskyy District Court, Dnipropetrovsk (“the Krasnogvardiyskyy Court”) seeking the applicant’s placement under extradition arrest pending a decision on his extradition. The prosecutor relied on Article 60 of the Minsk Convention and Article 463 of the Code of Criminal Procedure (see paragraphs 91 and 93 below). He also submitted that, having regard to the preliminary results of an inquiry concerning the extradition request, there were no circumstances preventing extradition under Article 57 of the Minsk Convention. In particular, the applicant was not wanted for political or war crimes; the prosecution was not time-barred; the charges had not been previously determined in Ukraine; the applicant was not a Ukrainian national, and had been refused refugee status in Ukraine; the applicant confirmed that he was in good health and had full command of the Russian language.
31.  On 23 June 2010 the Krasnogvardiyskyy Court examined the prosecutor’s request in the applicant’s and his lawyers’ presence and found that there were grounds for the applicant to remain in detention.
32.  The court observed that administrative arrest, introduced into the Ukrainian legal system with changes to the Code of Criminal Procedure on 17 June 2010, had actually been applied in the applicant’s case by the Babushkinskyy Court on 10 March 2010. On that ground it refused to decide on the question whether the applicant should be placed under extradition arrest. Relying on Article 463 § 8 of the Code of Criminal Procedure, the Krasnogvardiyskyy Court proceeded to examine the grounds for the applicant’s continued detention. It noted that the extradition request had been made in accordance with Article 58 of the Minsk Convention; that there were no grounds for refusing the applicant’s extradition pursuant to Article 57 of the Minsk Convention; that both Ukrainian and Belarus law envisaged imprisonment for over one year for the crimes for which the applicant was wanted and the charges were not time-barred; that the Belarus authorities had issued a warrant for the applicant’s arrest in the framework of the criminal proceedings; that the applicant did not have refugee status, nor did he enjoy immunity from prosecution; and that the eighteen-month period for extradition arrest had not expired. The court further noted that the parties did not indicate any circumstances capable of serving as a basis for the applicant’s release.
33.  On 30 June 2010 the Dnipropetrovsk Regional Court of Appeal quashed the decision of 23 June 2010, holding that the first-instance court had failed to decide on the prosecutor’s request. The matter was remitted for fresh examination.
34.  On 13 July 2010 the Krasnogvardiyskyy Court, relying on the same arguments as in its decision of 23 June 2010, decided to place the applicant under extradition arrest pending a decision on his extradition to Belarus.
35.  One of the applicant’s lawyers appealed, alleging that the decision of 13 July 2010 was unlawful, that there were no grounds for placing the applicant under extradition arrest, that the prosecutor’s request should not have been examined before the Supreme Court had dealt with the lawyer’s appeal against the decisions of 10 and 15 March 2010, and that the applicant should have been released from detention within seventy-two hours of the entry into force of the extradition-related amendments to the Code of Criminal Procedure on 17 June 2010.
36.  The lawyer also argued that the first-instance court had failed to take into account submissions that the applicant risked treatment contrary to Article 3 of the Convention and that the extradition inquiry had not been completed. The lawyer stated that the applicant had not been duly informed of the Belarus authorities’ decision to arrest him and that the decision was invalid on that ground.
37.  On 21 July 2010 the Dnipropetrovsk Regional Court of Appeal upheld the decision of 13 July 2010, finding that the first-instance court had duly examined all the relevant circumstances and complied with the procedure envisaged by Article 463 of the Code of Criminal Procedure. The Court of Appeal held that the questions of the applicant’s responsibility for the crimes with which he was charged in Belarus and the lawfulness of the procedural decisions taken by the Belarus authorities fell outside the scope of the review. It was also noted that the interim measure indicated by the European Court of Human Rights had expired on 25 March 2010 and that the applicant’s appeals to the Supreme Court and the European Court of Human Rights did not prevent him from being placed under extradition arrest.
38.  On 8 September 2010 the Krasnogvardiyskyy Prosecutor lodged a request with the Krasnogvardiyskyy Court for the extension of the applicant’s detention.
39.  On an unspecified date the applicant and his lawyers lodged with the same court requests for the applicant’s release. In particular, it was suggested that the applicant could be released on guarantee by the Union of Jewish Religious Communities and Organisations of the Dnipropetrovsk Region. Because of his religious beliefs and state of health the applicant required special kosher food and communication with a representative of a religious organisation, which was allegedly impossible in detention.
40.  On 29 September 2010 the Krasnogvardiyskyy Court allowed the prosecutor’s request, relying on the same grounds as in its decision of 13 July 2010. The court also refused the requests for the applicant’s release.
41.  The prosecutor’s further requests for the applicant’s continued detention, lodged with the Krasnogvardiyskyy Court on 25 November 2010, 2 February and 18 April 2011, were allowed by the court on 2 December 2010 and 15 February and 27 April 2011 respectively, for the same reasons as in its previous decisions. The Krasnogvardiyskyy Court also noted that the applicant was not a Ukrainian national and was not seeking to acquire that nationality. Relying on the preliminary results of the pending extradition inquiry, the Krasnogvardiyskyy Court further noted the applicant was not wanted by Belarus for political or war crimes; that in Ukraine there was no judgment or decision terminating the proceedings against the applicant on the charges in connection with which the applicant’s extradition was requested; and that Ukrainian law did not provide for the initiation of proceedings on those charges solely on a victim’s complaint.
42.  The applicant and his lawyers took part in the court proceedings and were able to raise counter-arguments.
43.  The applicant stated that he had appealed against the decision of 29 September 2010 and that the Dnipropetrovsk Regional Court of Appeal had dismissed the appeal as unsubstantiated on 6 October 2010. The applicant did not provide a copy of the appeal or the appeal decision.
44.  The decision of 2 December 2010 was not challenged on appeal.
45.  One of the applicant’s lawyers appealed against the decisions of 15 February and 27 April 2011. On 23 February 2011 the Dnipropetrovsk Regional Court of Appeal, having heard the appeal in the lawyer’s and the prosecutor’s presence, confirmed the former decision, while on 11 May 2011 it quashed the decision of 27 April 2011 and remitted the matter to the first-instance court for new consideration.
46.  In its decision of 23 February 2011 the Court of Appeal noted that at the beginning of the appeal hearing the applicant’s lawyer had requested the court to summon the applicant to that hearing. The court of appeal refused the request, stating that the right to be summoned to appeal hearings was given to detainees convicted or acquitted of a crime.
47.  Meanwhile, another of the applicant’s lawyers submitted several requests to the GPU seeking the applicant’s release from detention. Several requests for assistance in this matter were submitted to the German consulate in Kyiv.
48.  On 19 May 2011 the prosecutors ordered the applicant’s release on bail. Pending a decision on his extradition request, the applicant was allowed to travel within Ukraine, but not to leave the country.
49.  After the decision to refuse the request for the applicant’s extradition was taken by the Ukrainian authorities (see paragraph 63 below), the restriction on his movements was lifted and he left Ukraine for Germany.
50.  On 24 February 2010 the General Prosecutor of Belarus sent a request to the Ukrainian authorities seeking the applicant’s extradition to Belarus in connection with the criminal proceedings against him.
51.  The extradition request contained the following assurances: that the applicant would not be prosecuted for a crime committed prior to extradition without the consent of the GPU; that he would not be removed to a third country without the consent of the GPU; that he would not be subjected to torture, inhuman or degrading treatment or punishment; that he would be assured the right to a fair trial; that if necessary he would be provided with adequate medical assistance; that after the termination of the criminal proceedings or after serving his sentence, if one was imposed, the applicant would be free to leave Belarus; that the criminal prosecution of the applicant was not related to his political views, race, religion or ethnic origin; and that the death penalty was not envisaged for the crimes of which he was accused.
52.  On 26 February 2010 the First Deputy Prosecutor General of Ukraine acknowledged the receipt of the request for the applicant’s extradition and requested the Belarus authorities to provide additional assurances in respect of the applicant’s prosecution and detention in Belarus.
53.  On the same day the Ukrainian Migration Service informed the GPU that the applicant had not requested refugee status in Ukraine.
54.  By a letter of 1 March 2010, the Deputy General Prosecutor of Belarus provided additional assurances that the staff of Ukraine’s embassy or consulate in Belarus would be allowed to visit the applicant in detention; that their meetings with the applicant would not be monitored by the Belarus authorities; that they would be given the opportunity to obtain information about the state of the proceedings against the applicant and to be present at his trial; and that they would be informed of the outcome of the proceedings.
55.  On 26 February 2010 the GPU requested the SBU and the Ministry of Foreign Affairs of Ukraine to provide it with information concerning the applicant’s travel from and to Belarus and Ukraine and concerning his possible involvement in the political opposition in Belarus and persecution by the Belarus authorities on this ground.
56.  The GPU also requested the German Consulate in Kyiv to provide information concerning the applicant’s nationality and his application for refugee status in Germany. On 4 March 2010 the Consulate informed the GPU that the applicant was a German national and that German nationals could not apply for refugee status in that country.
57.  On 17 March 2010 the SBU replied that they had no information about the applicant’s travel outside the territory of Ukraine or his possible involvement in the political opposition in Belarus. A similar reply was given by the Ministry of Foreign Affairs of Ukraine on 23 March 2010.
58.  By a letter of 9 March 2010, the GPU informed the Court that, given the Court’s ruling under Rule 39 in the applicant’s case, no decision on his extradition request would be taken before the Court had decided on it.
59.  On 29 April 2010 the GPU informed one of the applicant’s lawyers that a decision concerning the request for the applicant’s extradition could not be taken because of the Court’s decision to apply Rule 39 in the case. The GPU also noted that the decision did not preclude the applicant’s detention and extradition inquiry.
60.  On 17 June 2010 the GPU ordered the Dnipropetrovsk Regional Prosecutor’s Office to complete, by 17 August 2010, an inquiry concerning the request for the applicant’s extradition in accordance with Article 465 of the Code of Criminal Procedure.
61.  Acting on a request by the GPU of 2 July 2010, the Consul of Ukraine in Belarus visited two detainees who had previously been extradited to that country, and noted that the conditions of their detention were satisfactory and that there were no complaints in that respect or concerning unlawful methods of investigation, and that their defence rights were observed. The Consul’s note was submitted to the GPU on 29 July 2010.
62.  On 17 August 2010 the time allowed for the extradition inquiry was extended by the GPU until 17 October 2010. There is no information concerning subsequent actions taken by the authorities in the framework of the inquiry.
63.  On 28 July 2011 the Deputy Prosecutor General of Ukraine issued a decision refusing the request for the applicant’s extradition. In particular, it was noted that according to the outcome of the extradition inquiry there were no grounds preventing the applicant’s extradition under the Minsk Convention. However, the Deputy Prosecutor General further noted that:
“...
According to the conclusions of [the Organisation for Security and Co-operation in Europe], the Council of Europe, the European Union, and of a number of international organisations, the human rights situation in Belarus has significantly worsened since the December 2010 presidential election [in that country].
In these circumstances, it was not possible to exclude a risk of violation of the rights of P. V. Molotchko, as guaranteed by Articles 3 and 6 of [the Convention], in case of his extradition to Belarus.
[The Convention] was binding for Ukraine, though Belarus was not a party to that international treaty and there were no effective mechanisms of control over respect for human rights in that country. Therefore, Ukraine, as a State Party to [the Convention], would bear the entire responsibility for any violation of the rights of P. V. Molotchko on the territory of Belarus.
Accordingly, extradition of P. V. Molotchko [to Belarus] would be contrary to Ukraine’s undertakings under the international treaties on human rights [to which it is a party]. This constitutes a ground for refusing extradition of a person under Article 466 § 1 (5) of the Code of Criminal Procedure.”
64.  On 2 March 2010 the applicant lodged with the Court a request for an interim measure suspending his extradition to Belarus. On 3 March 2010 the President of the Section decided that Rule 39 should be applied in the applicant’s case for a limited period and that the applicant should not be extradited to Belarus until 25 March 2010. The application was granted priority on the same date (Rule 41). On 25 March 2010 the President decided to extend until further notice the interim measure indicated in the case.
65.  By a letter of 7 July 2010, the Government informed the Court that the GPU would take a decision on the request for the applicant’s extradition under the new regulations on extradition. However, they assured that in any event the applicant would not be extradited, given the interim measure indicated by the Court.
66.  On 28 October 2010 the Government requested the Court to lift the interim measure in the light of the developments in the domestic law, namely the introduction of the new regulations on extradition.
67.  On the basis of the information provided by the Government and the applicant’s comments in reply, on 5 January 2011 the President decided to discontinue the application of Rule 39. In particular, it was noted that the Government had given an assurance that the applicant would have the opportunity to challenge an extradition decision, if any, and that the lodging of a complaint with the courts against such decision would suspend its execution.
68.  The parties were informed that the decision lifting the interim measure was taken on the understanding that the applicant would have the opportunity to contact the Court with a Rule 39 request if the extradition decision became final and enforceable. The Government were invited to inform the relevant authorities of their interpretation of the new legislation and to inform the Court of the applicant’s removal at least three working days in advance.
69.  On 5 March 2010 one of the applicant’s lawyers lodged an administrative claim against the GPU with the Kyiv Administrative Court, challenging the lawfulness of the applicant’s possible extradition to Belarus. She also requested the court to apply an interim measure with a view to preventing the applicant’s extradition.
70.  On the same day the court, holding that the applicant’s extradition might hinder the right to challenge it before the courts, decided to apply the requested interim measure and ordered the GPU not to extradite the applicant.
71.  On 12 March 2010 the same court decided to return the claim to the lawyer, as she had not submitted documents authorising her to act on behalf of the applicant. By a separate decision on the same day, the court revoked its procedural ruling of 5 March 2010.
72.  Neither the applicant nor the lawyer took part in the hearing on 12 March 2010. They learned of the decisions from the Government’s submissions in the proceedings before the Court, a copy of which the lawyer received on 26 March 2010.
73.  It cannot be established if the decisions of 12 March 2010 were challenged on appeal. No material was provided by the parties in this respect.
74.  On 23 March 2010 the applicant requested the Ukrainian Migration Service to grant him refugee status, alleging that he was a victim of political persecution in Belarus because he was involved in the organisation and financial support of the political opposition in that country.
75.  On 23 April 2010 the request was refused. The parties did not specify the reasons for that decision.
76.  The applicant challenged the refusal before the courts.
77.  By decisions of 31 August and 13 October 2010 the administrative courts at two levels of jurisdiction upheld the refusal. The courts noted that when the applicant had come to Ukraine he had not had the intention of obtaining refugee status: he had applied for it only after his arrest with a view to extradition; the applicant was not involved in political or civic activities in Belarus; the applicant did not prove that he had been active in the political opposition in that country; before arriving in Ukraine the applicant had been living in Germany, whose protection he had not sought when he had learned of the criminal proceedings against him in July 2008; the applicant was accused of serious crimes of a non-political nature; the applicant had failed to substantiate the alleged threat to his life and health in Belarus; the applicant’s submissions in the latter respect were limited to general information about the political situation in that country. The courts further noted that the migration authorities had duly examined the applicant’s written submissions and his statements made at interview. The courts concluded that the applicant’s request was a disguised attempt to evade criminal prosecution in Belarus.
78.  The applicant did not appeal on points of law.
79.  After his arrest on 23 February 2010 the applicant was placed in the SBU Isolation Unit (“the ITT”, ізолятор тимчасового тримання).
80.  On 12 March 2010 the applicant was transferred to the Dnipropetrovsk Temporary Detention Centre (“the SIZO”, слідчий ізолятор). According to the applicant’s submissions of 19 March 2010, in the SIZO his head was shaved against his will and he was placed in a cell where suspects of serious crimes were detained; he did not get enough food and drinking water; he was at risk of contracting tuberculosis; and he did not receive parcels of food and medication sent to him from outside the SIZO.
81.  In later submissions the applicant also alleged that during the winter period in 2010 and 2011 he had been escorted to the court hearings in an unheated van.
82.  According to the Government’s submissions of 30 July 2010, the applicant’s head had not been shaved, but his hair had been cut short. The applicant was provided with adequate food in the SIZO. The applicant’s lawyers visited him in the SIZO on 15 March, 6 April, 5 and 21 May, 3 June, and 1 and 5 July 2010. The lawyers brought the applicant food and personal hygiene products which the SIZO authorities allowed him to keep. He did not request any medication from the SIZO authorities.
83.  The Government also submitted a statement written by the applicant on 20 July 2010, the relevant extracts from which read as follows:
“... I would like to comment on the questions put to me ... I arrived in the SIZO on 12 March 2010 ... during sanitary processing [in the SIZO] I requested the attendant to cut my hair short (not to shave off the hair completely) so that it would not be too hot ... I do not have any complaints about my health ... signed personally, no physical or psychological influence or abuse ...”
84.  The applicant maintained that he had given the statement at the request of the SIZO authorities, and without obtaining his lawyer’s advice, because he had been afraid that the authorities would punish him if he refused. The applicant denied the statement and insisted that his hair had been cut against his will.
85.  On 4 March and 15 May 2010 the applicant was taken to one of the SBU offices, where he was questioned by Belarus KGB officers, who tried to coerce him into denying the statements he had made in 2008-09 and to make incriminating statements against the Belarus investigators who had previously dealt with his case.
86.  On 30 November 2010 an investigator from the SBU, acting on a request of the Deputy Prosecutor General of Belarus, tried to question the applicant concerning his criminal case, in the presence of one of his lawyers and several KGB officers. The applicant refused to answer any questions, stating that the presence of KGB officers was contrary to domestic and international law and that it made him feel under political pressure.
87.  On 23 December 2010 the applicant complained to the GPU, alleging that during the questioning the KGB officers had exerted psychological pressure on him in order to extract incriminating statements aimed at former Belarus investigators and to persuade him to pay compensation to Belarus. By a letter of 28 January 2011, the GPU stated to the applicant that these allegations were unfounded.
88.  The applicant stated that the KGB had continued contacting him concerning the criminal case, though he provided no details in that respect.